On collusion in subcontracting practices under the Turkish Labour Law

This study is a master thesis ?on collusion in Subcontracting Practicesunder the Turkish Labour Law? The relationship between a contractor and asubcontractor is regulated according to a new approach in the 6th and 7thparagraphs of Article 2 in Labour Law. No. 4857 enforced on 10 June 2003.Inclusion of the circumstances that may lead to collusion in a legal textbrought a new perspective to the issue which had been directed by theopinions and jurisprudence of the doctrine.Due to the widespread exploitation of subcontracting which is inclined tobe used as a tool for cheap employment, its hindering effect on organisation,and increased number of problems experienced even in the use of individualrights, the issue of subcontracting has become a topic for discussion in theinspections of labour inspectors, within the doctrine itself and in courtdecisions. Because of the fact that regulations concerning subcontracting inLaw No. 1475 made it possible to penetrate the law, the subject ofsubcontracting was often taken to the court and the Supreme Court waspartially successful in blocking relationships causing collusion by using theprovisions of general law. The still valid jurisprudences form the basis oftoday?s legal regulations.The new regulation on the relationship between the main contractor andthe subcontractor in Law No. 4857 are designed with a more protective andadvanced approach when compared with the ones in Law No. 1457.However when the discussions in the doctrine, the cases experienced bylabour inspectors during their inspections, and the cases taken to the courtare considered it is obvious that the new regulation also has somedeficiencies and may lead to disputes.This study is composed of four main sections. The first section discussesthe issue of collusion, which is a concern of law of obligations. It alsodiscusses the legal basis, types, judgement, and consequences of collusion;assertion and proving of collusion; the difference of collusion from similaroperations; and the point of view of the doctrine.The second section focuses on the relationship between the maincontractor and the subcontractor, and discusses the history of subcontractingin our legislation, conceptual structure, definition and elements ofsubcontracting, and the responsibility of the main contractors and publicauthorities.The third section deals with the cases in the subcontracting relationship,which constitutes collusion. Also, it gives some examples of apparent casesof collusion as regulated in our legislation, possible cases of collusion inaccordance with general law, the approach of the court, and, finally, somecases encountered by labour inspectors during their inspections.The fourth, and the last, section discusses the possible consequences ofa relationship in cases where collusion is detected.